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[2018] ZALCJHB 22
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Bombela Operating Company (Pty) Ltd v Mthukwane NO and Others (JR1922/13) [2018] ZALCJHB 22 (30 January 2018)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR 1922/13
In
the matter between:
BOMBELA OPERATING COMPANY
(PTY) LTD
Applicant
and
JACKSON. MTHUKWANE
N.O
First Respondent
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
UTATU SARHWU
Third Respondent
CLIFFORD MORAKE
Fourth Respondent
Heard:
23 February 2017
Delivered:
30 January 2018
JUDGMENT
TLHOTLHALEMAJE, J:
Introduction:
[1]
The applicant, Bombela Operating Company (Pty) Ltd (Bombela) seeks an
order reviewing and setting aside the arbitration award
issued by the
first respondent (Commissioner), acting under the auspices of the
Commission for Conciliation Mediation and Arbitration
(CCMA). In his
award, the Commissioner had found that the dismissal of the fourth
respondent, Mr Clifford Morake (Morake) was procedurally
and
substantively unfair, and had ordered that he be reinstated with
retrospective effect, including payment of back-pay in the
amount of
R191 354.52.
[2]
The matter was initially enrolled for a pre-hearing on
11 August 2016. On that day the matter came before Van
Niekerk
J, who had issued an order in terms of which the late filing
of the review application and the late filing of the answering
affidavit
was condoned.
Background:
[3]
Bombela is a private enterprise that operates the Gautrain and its
related bus services. Morake, prior to his dismissal, held
the
position of Customer Service Officer (“CSO”), and was
responsible for the North Sector of the Gautrain service.
Morake
commenced employment with Bombela on 1 November 2009 and
was dismissed on 11 December 2012 after a disciplinary

enquiry based on allegations of gross misconduct. It was alleged that
he had assaulted a customer at the Gautrain Midrand Station
in the
evening of 13 October 2012.
The
Arbitration proceedings:
[4]
Aggrieved by the dismissal, Morake, through his Union UTATU, referred
an unfair dismissal dispute to the CCMA. Conciliation
having failed,
the dispute came before the Commissioner for arbitration. At the
arbitration proceedings, three (3) witnesses testified
on behalf of
Bombela, being, Carl Cornelson (Cornelson), its IT Manager and
Chairperson of the internal disciplinary hearing; Trevor
Johnstone
(Johnstone) the Internal Investigator, and David Tsotetsi (Tsotetsi),
Bombela’s Customer Service Supervisor at
the Gautrain Midrand
Station. Morake testified in his own case and had also called upon
Palesa Motsie to testify on his behalf.
[5]
The following facts were not seriously in dispute before the
Commissioner;
a)
The incident that led to the allegations of misconduct and ultimate

dismissal of Morake took place late on Saturday night of
13 October 2012 at Midrand Station. Morake was in an office

performing administrative duties when he was called by Palesa Motsie
to attend to a scene unfolding at or near the ticket office.
Upon his
arrival there was a female passenger (Vilakazi), who appeared to have
had difficulties with the scanning of her card in
order to exit the
station.
b)
Tsotetsi had initially approached Vilakazi with a view of attempting

to assist her use her card to exit. Whilst Tsotetsi was attempting to
assist her, a male person, who it turned out was Vilakazi’s

companion, Mr Mashalani (Mashalani), and who had already exited then
confronted Tsotetsi, and wanted to ascertain what the problem
was
with his companion’s card.
c)
Commotion then ensued, and it was at that point that Morake,
who had
been called by Motsie had intervened. Mashalani, who was on the other
side of the turnstiles had then used his card to
get back to where
Vilakazi and others were. Morake then attempted to explain to
Mashalani that he should not check in as he might
attract a penalty
if he exceeds ten (10) minutes within the station. Things turned for
the worse when Mashalani refused to exit
the station when directed to
do so.
[6]
Tsotetsi’s testimony was that when Morake came to intervene, he
had asked Mashalani, who appeared to be under the influence
of
alcohol to wait whilst Vilakazi was being assisted. Vilakazi
according to Tsotetsi also appeared to be under the influence of

alcohol. At that stage, Mashalani then checked back into the station,
and Morake advised him that he faced a fine if he exceeded
his ten
minutes in the system. It is at that stage that Mashalani refused to
heed Morake’s instructions and started to verbally
abuse the
latter, hurling profanities at him.
[7]
Morake according to Tsotetsi then called security personnel to assist
in containing the situation. Mashalani had nonetheless
continued to
verbally abuse Morake and security personnel. Tsotetsi’s
contention was that Morake was involved in the removal
of Mashalani.
He however did not witness any physical contact or altercation
between Morake and Mashalani.
[8]
Motsie, Bombela’s Customer Service Attendant (CSA) on duty on
the day of the incident, testified that before the commotion,
she was
approached by Vilakazi to assist her in  loading her Gautrain
card with R30. As Motsie was busy at the time with another
customer,
Tsotetsi then assisted Vilakazi as per her request. After the
reloading of the card, Vilakazi attempted to exit the station
but
could not. She then went back to the ticket office, where her card
was analysed by Motsie, who had established through the
system that
Vilakazi had not checked-in at her previous boarding station.
[9]
When Vilakazi was questioned about where she had boarded the train,
she became rude and stated that it did not matter where
she boarded,
her only concern was exiting the station. At that point Motsie left
the ticket office and went to seek the assistance
of Morake, who was
already aware of the commotion.
[10]
At the ticket office, Morake introduced himself as the Station
Manager and asked what the problem was. He then proceeded to
explain
Bombela’s rules and regulations to Vilakazi. At that point
Mashalani re-entered the Station, and Morake then explained
to him
that he may attract a penalty of R200 if he exceeds ten (10) within
the station. Mashalani then uttered the words “
I don’t
f…ing care let my girlfriend out”
. Morake attempted
to reprimand Mashalani and had called security personnel to assist.
[11]
According to Motsie, it was clear to her that both Vilakazi and
Mashalani were under the influence of alcohol. This came from
her
observation that they both smelt of alcohol, were rude,
uncontrollable, and had continuously hurled profanities towards
Morake.
As far as Motsie was aware, Morake did not assault the
customer. She conceded that Morake did touch Mashalani,
albeit
not in a violent manner.
[12]
Morake’s testimony was that at the time of the incident, he was
in his office when he heard commotion and noise coming
from the
ticket office. He was approached by Motsie to come and assist in
containing the unfolding situation at the ticket office.
Upon his
arrival, Tsotetsi explained to him what the problem was, including
that Vilakazi was refusing to cooperate with him and
to tell him
where she had boarded the train. Morake’s testimony was that as
he arrived on the scene, Vilakazi looked at him
and said ‘
another
black manager!’
and continued the verbal abuse. While still
talking to Vilakazi, Mashalani, who had already exited the system and
was on the other
end of the exit starting pointing fingers at him,
also verbally abusing him.
[13]
Morake with the assistance of Tsotetsi had then discovered that
Vilakazi could not exit the system as she had not checked in
with her
new card when she boarded the train at the previous station. Morake
attempted to explain to Vilakazi what the problem
was and at that
stage, Mashalani re-entered the station, hurling obscenities at
Morake, including making references to his (Morake’s)
mother’s
private parts. He accused Morake and other staff members of
incompetency in his profanity laced tirade.
[14]
Whilst Morake was trying to calm Mashalani down, Vilakazi, at the
same time ran towards the platform, and security officers
together
with Morake ran after her to calm her down as her conduct on the
station platform was regarded as unsafe. Mashalani on
the other hand
had continued to verbally Morake and security officers. The security
officers according to Morake appeared to be
reluctant to confront
Mashalani.
[15]
Morake continued to tell Mashalani to vacate the station but to no
avail, as the latter continued with his verbal abuse.  It
was at
that point that Morake had made physical contact with Mashalani, by
touching him on the shoulder, neck area and back in
an attempt to
remove him from the station. He had ultimately succeeded in removing
Mashalani from the station.
[16]
Under cross-examination and when confronted with the video footage of
the incident, Morake maintained that he had merely touched
Mashalani
in an attempt to remove him from the station. He denied having
forcefully pushed him or attempted to dispossess him of
his mobile
phone. He contended that Mashalani attempted to take a photograph of
him and in trying to prevent him from doing that,
his (Mashalani’s)
mobile phone fell to the ground. He denied having sought to
dispossess Mashalani of his phone.
[17]
Johnstone, an Internal Investigator for Bombela had investigated the
allegations against Morake. He could only testify in regard
to what
was seen on the video footage. Under cross examination, Johnstone
conceded that from the video footage, a security personnel
could be
seen even before Morake come to the scene. In his opinion, the
security personnel were primarily responsible for the physical

removal of transgressors on the stations. Where they failed to do so,
members of the South African Police Service, who were ordinarily

stationed at each Gautrain station could be called upon to assist. He
confirmed that in this case, members of the security personnel

present at the scene stood by while the transgressors caused
commotion.
[18]
In dismissing Morake, Cornelson testified that he considered the
former’s position in the company, which required of
him to
manage conflict situations at the stations; the video footage from
which it could be seen that Morake had indeed assaulted
the customer,
and the fact that employees who had committed similar transgressions
in the past were dismissed.
[19]
In regard to the procedural fairness of the dismissal, Morake had
testified that at the disciplinary enquiry, he was not afforded
an
opportunity to state his case or lead the evidence of his own
witness, Tsotetsi. The chairperson, Cornelson had according to

Morake, simply called Tsotetsi and asked him a few questions before
excusing him
[20]
Cornelson had conceded that Morake did not give evidence in his
defence and that his representative at the enquiry ‘stated
his
case on his behalf’. He further conceded that Morake’s
representative never told him that the former did not wish
to
testify. He further conceded that Tsotetsi, who was supposed to have
testified on behalf of Morake was called in and only asked
questions
by him instead of the initiator, but that he had merely asked
‘clarity questions’ after viewing the video
footage. He
nonetheless conceded that he had not followed company policy in
regard to the presentation of evidence in the hearing.
The
arbitration award:
[21]
In his arbitration ward, the
Commissioner concluded that the dismissal of Morake was both
procedurally and substantively unfair.
In considering the procedural
fairness of the dismissal the Commissioner referred to Schedule 8 of
the Code of Good Practice: Dismissal.
[1]
He accepted the evidence of Tsotetsi and Morake that the Presiding
Chairperson of the hearing was the first person to pose question
to
Tsotetsi as the witness of the employee and that the representative
of the employee was the last person to pose question as
oppose to
them leading their witness. The Commissioner further reasoned that
the evidence of Cornelson was weak and unconvincing,
and as such was
to be rejected, whilst that presented by and on behalf of Morake was
probable. He thus concluded that Morake was
not afforded an
opportunity to state his case at the internal disciplinary hearing.
[22]
In regards to substantive fairness of the dismissal, the Commissioner
accepted the video footage as authentic evidence, and
that Morake had
indeed pushed Mashalani twice towards the exit contrary to his and
Motsie’s evidence that he had merely touched
him. The
Commissioner further accept that there was an argument between Morake
and Mashalani and as such, Morake was guilty of
assault.
[23]
In regards to sanction, the Commissioner held that provocation was an
acceptable factor in mitigation and accepted that the
evidence
indicated that indeed Morake was provoked, particularly in view of
the verbal abuse hurled towards him. He further accepted
the assault
was not of such a serious nature as it only amounted to a push of
Mashalani towards the exit. The push was for the
sole intention of
ejecting Mashalani from the station. The Commissioner further took
into account that Morake had a clean disciplinary
record. Further
taking into account that Mashalani was verbally abusive and that the
assault was not of a serious nature, the Commissioner
concluded that
the sanction was too harsh, and that Bombela should have considered a
less severe one.
The
grounds of review and evaluation:
[24]
Bombela attacked the award on a variety of grounds, including that
the Commissioner’s findings were not that of a reasonable

decision maker in the light of the fact that he;
a)
failed to apply his mind to the evidence, or failed to take
into
account certain evidence;
b)
made factual findings that did not correspond with the evidence
and
documents presented;
c)
failed to conduct the proceedings properly, and/or failed
to
comply with the provisions of the LRA;
d)
failed to apply the Arbitration Guidelines prior to taking a
decision
to reinstate;
e)
exceeded his powers in terms of the LRA
[25]
The test on review is whether
the decision of the Commissioner under review is one which a
reasonable decision maker could not have
made in the light of the
material placed before him or her
[2]
.
The review test was explained as follows in
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[3]
“…
That
test involves the reviewing court examining the merits of the case
‘
in the round’
by determining whether, in the light of the issues raised by the
dispute under arbitration, the outcome reached by the arbitrator
was
not one that could reasonably be reached on the evidence and other
material properly before the arbitrator... The reasons are
still
considered in order to see how the arbitrator reached the result.
That assists the court to determine whether that result
can
reasonably be reached by that route. If not, however, the court must
still consider whether apart from those reasons, the result
is one
that a reasonable decisionmaker could reach in the light of the
issues and the evidence.”
And,
‘
The
distinction between review and appeal, which the Constitutional Court
stressed is to be preserved, is therefore clearer in the
case of the
Sidumo test. And while the evidence must necessarily be scrutinised
to determine whether the outcome was reasonable,
the reviewing court
must always be alert to remind itself that it must avoid
'judicial
overzealousness in setting aside administrative decisions that do not
coincide with the judge's own opinions'
.
The LAC subsequently stressed that the test ‘is a stringent
[one] that will ensure that … awards are not lightly

interfered with’ and that its emphasis is on the result of the
case rather than the reasons for arriving at that result The
Sidumo
test will, however, justify setting aside an award on review if the
decision is ‘
entirely
disconnected with the evidence’
or is ‘
unsupported
by any evidence’ and involves speculation by the commissioner
.’
(Authorities omitted)
[26]
To the extent that the primary
basis of Bombela’s case was that the Commissioner committed an
irregularity as he had either
failed to apply his mind to the
evidence presented, or had ignored that evidence, or had made
findings that were in conflict with
the evidence presented, in
Goldfields Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation
Mediation and Arbitration and Others
[4]
,
it was held that;
‘…
What
is required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the

reasonableness test established by Sidumo. The gross irregularity is
not a self-standing ground insulated from or standing independent
of
the Sidumo test. That being the case, it serves no purpose for the
reviewing court to consider and analyse every issue raised
at the
arbitration and regard failure by the arbitrator to consider all or
some of the issues
albeit
material as rendering the award liable to be set aside on the grounds
of process-related review.’
[5]
And,
‘
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts

presented at the hearing and came to a conclusion which was
reasonable to justify the decisions he or she arrived at.’
[6]
And,
‘
In
a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into account every factor individually,

consider how the arbitrator treated and dealt with each of those
factors and then determine whether a failure by the arbitrator
to
deal with one or some of the factors amounts to process-related
irregularity sufficient to set aside the award. This piecemeal

approach of dealing with the arbitrator’s award is improper as
the review court must necessarily consider the totality of
the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision-maker could make.’
[7]
[27]
Applying the above principles
to the facts of this case, and further in line with the approach
adopted in
Goldfields
[8]
,
the first question to be
answered is whether the
process that the Commissioner employed gave the parties a full
opportunity to have their say in respect of the dispute. This is

bearing in mind that
in
terms of the provisions of section 138(1) of the LRA, an arbitrator
is entitled to conduct the arbitration proceedings in a manner
that
he or she considers appropriate in order to determine the dispute
fairly and quickly, as long as he or she deals with the
substantial
merits of the dispute with the minimum of legal formalities.
[28]
The submissions made on behalf of Bombela in
its written heads of argument,
i.e.,
that the Commissioner allowed Morake’s representative to give a
lengthy opening statement, thus allowing him to give evidence,
or
allowed him to interfere with its representative, or that the
Commissioner made irrelevant statements such as ‘
you
might as well call the tea-lady’
amount to nick-picking. These submissions go against the grain of
what was stated in
Goldfields
that it is not for the review Court to examine each factor of the
arbitration proceedings and to invariably conclude that there
was
some procedural irregularity sufficient to have the award set aside.
[29]
Upon a perusal of the transcribed record, and
in the light of the latitude usually granted to Commissioners in the
conduct of the
proceedings, there is therefore no basis for any
conclusion to be made that these alleged irregularities effectively
denied Bombela
any right to have its say in respect of the dispute.
[30]
The Commissioner as can be gleaned from the
record may have made certain remarks, which the Bombela’s
representatives deemed
inappropriate. There was however nothing in
those remarks that can be construed as depriving the parties of a
fair hearing. The
complaints surrounding Morake’s
representative being afforded a lengthy opportunity to make opening
or closing arguments
are equally a red-herring. It is trite that a
representative in arbitration proceedings merely presents a case on
behalf of a party.
There is nothing in the award or the pleadings
that demonstrates that the Commissioner treated these opening or
closing statements
made on behalf of Morake at the proceedings as
evidence.
[31]
There can be no doubt in this case that the Commissioner was alive to
the issues he was required to arbitrate or determine.
He had
correctly pointed out that the onus was upon Bombela to demonstrate
on a balance of probabilities that the dismissal of
Morake was
substantively and procedurally fair. Central to the allegations that
led to the dismissal was whether Morake had assaulted
a customer at
Midrand Station. Despite Morake and Motsie’s contentions that
the customer was not assaulted, but was merely
pushed towards the
exit of the station, the Commissioner had correctly found (based also
on the video evidence presented) that
the conduct in question, i.e.,
pushing the customer twice, constituted an assault.
[32]
Bombela however takes issue with the Commissioner’s conclusions
in regards to sanction, contending that the latter failed
to take
into account the nature of the assault, Morake’s position, the
fact that Morake had continuously denied having assaulted
the
customer, and the fact that provocation was never raised as a defence
until during his cross-examination.
[33]
In
Sidumo
, it was held that;
‘
In
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given the power to
consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving at a decision
a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must consider all relevant

circumstances’
[9]
[34]
In arriving at the conclusion
in regards to sanction, the Commissioner took into account that
Morake was ‘
severely
insulted’
[10]
,
and further had regard to the circumstances under which the assault
took place. He found that Morake was indeed provoked, and
that the
nature of the assault was not serious as this was not a case where he
had thrown ‘
an upper
cut or slapped’
[11]
the customer, as the intention was merely to eject him from the
station.
[35]
Obviously, the Commissioner’s
approach and conclusions in regards to the seriousness of the
misconduct in question is out
of kilter with the principles
applicable to an assessment of the gravity of misconduct pertaining
to assault. For an assault to
have taken place, it need not have been
accompanied with an ‘
upper
cut
’, or a
slap.
An assault by definition
can take a variety of forms, and the legal requirements are the
intentional and unlawful application of
physical force, however
slight, to the body of the complainant, or the threat that such force
will be applied
[12]
.
In this case, there was such application of physical force.
[36]
By its very nature, assault is a serious form of misconduct. This
however does not imply that every case of assault should
be met with
a dismissal, in that it is acknowledged that defences such as
provocation may negate the unlawfulness of that conduct.
[37]
The issue in this case is whether there was provocation as found by
the Commissioner. In my view, the question should be answered
in the
affirmative. Further based on the following factors which were not
seriously disputed as presented before the Commissioner,
it should be
accepted that Morake was compelled to act in the manner he did. These
factors include that;
a)
Morake was called upon to the scene to intervene. On his evidence
and
that ofTsotetsi and Motsie, the two customers were clearly under the
influence of alcohol, were vulgar, obstinate, abusive
and generally
uncooperative with Bombela’s staff present trying to help them
or to contain the situation. On Morake’s
uncontested evidence,
the abuse and vulgarity were particularly directed towards him, and
in the most personal and lewd manner.
b)
The customers had clearly broken the rules of Gautrain at the
time,
more particularly in regards to the use of the Gautrain card, the
re-entering of the station, the running by Vilakazi on
the platform
when she had no reason to, being unruly and under the influence of
alcohol, and failing to cooperate with authorised
members of staff
when requested to do so;
c)
Motsie, Tsotetsi and Morake could not, despite all their best

endeavours, control the customers.
d)
Morake’s evidence was that security personnel called upon
to
contain the situation stood idle and did nothing whilst the scene
unfolded. Johnstone from his observation of the video footage

confirmed the security personnel’s inaction in the face of the
commotion that took place.
e)
The submissions made on behalf of Bombela that there was nothing
from
the video footage to suggest that Morake had requested the security
to intervene are unsustainable. This is particularly so
since despite
security personnel being seen on the footage, no attempt was made to
call them as witnesses, and further since the
video footage is muted.
f)
Part of Morake’s responsibilities included maintaining
order in
the station, and with the benefit of hindsight, I accept that members
of the SAPS should have been called to assist in
the light of the
security personnel’s reluctance to do so. It is however easy to
be wise after the fact. The circumstances
at the time, and when all
else had failed, required of Morake to physically deal with a clearly
inebriated customer in order to
eject him out of the station.
g)
The steps taken by Morake in the circumstances in an attempt
to
remove the customer out of the station were clearly the exigencies of
the situation, and it should be accepted that there was
no malice or
intention (as required by the definition of assault) on the part of
Morake to ultimately conduct himself in the manner
he did.
[38]
In arriving at the conclusion that the sanction of dismissal was
inappropriate, the Commissioner also took into account that
Morake
had a clean service record, and that he was a supervisor. Inasmuch as
it is accepted that a clean service record on its
own does not
justify a reinstatement, there is no suggestion in this case that
this is the only factor upon which the Commissioner
arrived at his
decision. In the circumstances, and in the light of the conclusions
reached that Morake acted in the manner that
he did because the
circumstances at the time required of him to do so, I am satisfied
that upon a consideration of all the factors,
the Commissioner’s
conclusions on the substantive fairness of the dismissal cannot be
said to be those that a reasonable
decision maker could not have
arrived at.
[39]
It is trite that once a Commissioner or this Court concludes that a
sanction of dismissal was not appropriate, the remedy that
should
follow in accordance with the provisions of section 193 (1) of the
LRA is that of reinstatement, unless there are factors
contemplated
under section 193 (2) of the LRA that militates against such relief.
[40]
It was submitted on behalf of Bombela that in regards to the remedy
of reinstatement, the issue of a trust relationship was
not raised in
the evidence before the Commissioner. It was nonetheless contended
that the issue should have been considered within
the context of the
misconduct in question and Morake’s senior position in the
company.
[41]
It is now trite that a
breakdown in a trust relationship between an employer and an employee
can be established without the necessity
of evidence being led in
that regard, particularly in circumstances where such a breakdown can
be inferred from the nature and
gravity of the proven misconduct
[13]
.
In this case, inasmuch as the assault was proven, it has already been
stated that such conduct took place in circumstances that
were forced
upon Morake. It is accepted that Morake is not entitled to assault
customers of Bombela. However, given the circumstances
of this case,
there is no basis to conclude that Morake’s conduct had broken
the trust relationship.
[42]
It was correctly conceded on behalf of Morake that some sanction in
the light of the Commissioner’s conclusions in regard
to
assault having taken place would have been appropriate. Bombela on
the other hand had contended that a reinstatement was not
appropriate
in circumstances where Morake approached the arbitration without
clean hands. In my view, even if there is merit in
Bombela’s
contentions, that issue on its own is not sufficient to deprive
Morake of an order of reinstatement. In the light
of the concessions
made on behalf of Morake, it is my view that the order of
reinstatement should have been accompanied by some
form of censure,
which issue I will address shortly.
[43]
In regard to whether the
dismissal was procedurally fair, it is accepted in line with the
approach set out in Avril
Elizabeth
Home for the Mentally Handicapped v CCMA
[14]
that even though employees are entitled to be heard and to present
defences to allegations against them, employers were not required
to
conduct disciplinary proceedings in a manner akin to a criminal or
civil trial.
[44]
In this case, the Commissioner took into account the provisions of
Item 4 of Schedule 8 of the Code of Good Practice, and further
had
regard to the principles set out in
Avril Elizabeth
. He
concluded that based on Cornelson’s concessions that Morake did
not present his case as he had thought that his representative
had
testified on his behalf when he cross-examined the company’s
witnesses, the disciplinary proceedings were procedurally
irregular.
This finding was also based on Cornelson’s conduct of calling
in a witness that Morake intended to call, asking
him question before
Morake’s representative could do so.
[45]
A fundamental principle of due process is that an accused person must
be afforded an opportunity to state his or her case,
and to refute
the allegations against him or her. Representatives at any
proceedings, including disciplinary enquiries are not
there to
testify on behalf of parties, unless they have specifically indicated
that intention. It is not for chairpersons to assume
that the
representatives are there to testify on behalf of employees. In the
absence of Morake having been afforded an opportunity
to state his
case in respect of the allegations against him, and further
irrespective of whether he had made a written statement
or not prior
to the enquiry, it should be concluded on that ground alone that
indeed the Commissioner’s finding that the
dismissal was
procedurally unfair is unassailable.
Conclusions:
[46]
Having had regard to the totality of the evidence before the
Commissioner, I am satisfied there is nothing to suggest that
his
decision was entirely disconnected with the evidence, or was
unsupported by any evidence, or had involved speculation on his
part.
I am further satisfied that the Commissioner properly identified
and
understood the nature of the dispute he was required to arbitrate,
considered the principal issue before him; evaluated the facts
presented at the hearing, and came to a conclusion which was
reasonable
to justify the decisions he had arrived at. In essence,
the award, other than the absence of censure accompanying
reinstatement,
is one that falls within a band of reasonableness.
[47]
To the extent that it is concluded that Morake deserved some form of
censure with his reinstatement, I am of the view that
all the
material was placed before the Court, and given the circumstances of
this case, little purpose would be served by remitting
this matter
back to the CCMA simply for a reconsideration of this issue.
Accordingly, I am of the view that the remedy of reinstatement,

should have been accompanied by a final written warning.
[48]
I have further had regard to the requirements of law and fairness,
and I am not convinced that a cost order is warranted in
this case.
Order:
[49]
Accordingly, the following order is made;
1.
The application to review and set aside the arbitration award
issued
by the First Respondent is dismissed.
2.
The First Respondent’s award is however amended, to reflect

that the order of retrospective reinstatement of the Third Respondent
is to be accompanied by a written final warning to be placed
on his
employment record.
3.
There is no order as to costs.
__________________
E.
Tlhotlhalemaje
Judge of the Labour Court of South
Africa
APPEARANCES:
For
the Applicant:

Adv. S Bernhardt
Instructed
by:

Yusuf Nagdee Attorneys
For
the Fourth Respondent:
Ms. TC Ralehoko of
Cheadle Thompson & Haysom Inc.
[1]
4 Fair procedure
(1)
Normally, the employer should conduct an investigation to determine
whether there are grounds for dismissal. This
does not need to be a
formal enquiry. The employer should notify the employee of the
allegations using a form and language that
the employee can
reasonably understand. The employee should be allowed the
opportunity to state a case in response to the allegations.
[2]
Sidumo v Rustenburg
Platinum Mines Ltd and Another
[2007] 12 BLLR 1097
(CC) at
para [110]
[3]
[2013] 11 BLLR 1074
(SCA)
at para 12 - 13
[4]
(2014) 35 ILJ 943 (LAC)
[5]
At para 15
[6]
At para 16
[7]
At para 18
[8]
At para 20,
where it was held that;
‘…
The questions to
ask are these: (i) In terms of his or her duty to deal with the
matter with the minimum of legal formalities,
did the process that
the arbitrator employed give the parties a full opportunity to have
their say in respect of the dispute?
(ii) Did the arbitrator
identify the dispute he was required to arbitrate (this may in
certain cases only become clear after
both parties have led their
evidence)? (iii) Did the arbitrator understand the nature of the
dispute he or she was required to
arbitrate? (iv) Did he or she deal
with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one
that another decision-maker could
reasonably have arrived at based on the evidence’
[9]
At para 79
[10]
Paragraph
32 of the award
[11]
Paragraph
34 of the award
[12]
See John
Grogan: Dismissal at page 182
[13]
Impala Platinum Ltd v
Jansen
[2017] 4 BLLR 325
; (2017) ILJ 896 (LAC). See also Woolworths
(Pty) Ltd v Mabija and Others
[2016] 5 BLLR 454
(LAC)
at
458 para 21
,
where
it was held that
;
‘
The
fact that the employer did not lead evidence as to the breakdown of
the trust relationship does not necessarily mean that
the conduct of
the employee, regardless of its obvious gross seriousness or
dishonesty, cannot be visited with a dismissal without
any evidence
as to the impact of the misconduct. In some cases, the more
outstandingly bad conduct of an employee would warrant
an inference
that trust relationship has been destroyed. It is, however, always
better if such evidence is led by people who
are in a position to
testify to such break down. Even if the relationship of trust is
breached, it would be but one of the factors
that should be weighed
with others in order to determine whether the sanction of dismissal
was fair..’
[14]
(2006) 27 ILJ 1644 (LC)